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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Land - From: 1200 To: 1799

This page lists 216 cases, and was prepared on 02 April 2018.

 
Case XCVIII 10 Jac Cr 311, Merret v Smith Hob 76, 246 Count, Common, Bank, Ejectment [1220] EngR 62; (1220-1623) Jenk 341; (1220) 145 ER 247 (E)
1220


Land
In ejectione firman, the course of the Common pleas is, where the defendant appears, to count, aud after imparlance to make a second count by way of recial ; but the first ought to contain the substance of the matter
[ Commonlii ]
 
2 Roll R 178 18 Jac Cr 573, Waldoe's Case [1220] EngR 291; (1220-1623) Jenk 318; (1220) 145 ER 231 (D)
1220


Land

[ Commonlii ]
 
Case XXXIV 1 E 4, 9 2 E 4, 28 Dyer, 336 Traverse, Confession And Avoidance [1220] EngR 8; (1220-1623) Jenk 117; (1220) 145 ER 82 (E)
1220


Land
Where seisin is materially alledged in real action, in a bar, replication or title ; it ought to be traversed and the confession and avoidarice of joint seisin and survivorship will not serve : for the allegation of seisin is positive, and is to be understood sole seisin. But where the seisin is alledged by way of supposition, as in a writ of ayel or mortdancestor, where the dying seised of the ancestor is alledged by the words & quod cum in the count ; there a confession and avoidance will serve, for the reasoti aforesaid. And so if in the writ of ayel the seisin is alledged in the ayel ut dicitur. In mortdancestor the writ is for the jury to enquire whether the ancestor of the demandant died seised.
[ Commonlii ]
 
2 Jac Cr 40, Earl of Rutland's Case 1 Co 76 A B Curia Wardor', Surrender, Tail, Fines, Discontinuance, Bar Baldwin's Case [1220] EngR 274; (1220-1623) Jenk 321; (1220) 145 ER 233 (D)
1220


Land, Landlord and Tenant
A tenant for life, remainder to B. in tail ; B. levies a fine, with proclamations, sur concessit, to A. and C. for their lives : this fine bars the intail during the said two lives only, and is not a discontinuance omnio : for B. was riot seised by force of the tail, and the fine is sur concessit : it seems that A.'s acceptance of this estate to him and C. is a surrender of the former estate which he had : as in the case of a lease for years made to A. and during the years, he accepts a lease for years of the same land to him and B.
[ Commonlii ]
 
Case VI 2 H 8 9 Co 118 H Dally, 25, Pl 8 11 Co 59 A B Keyleway, 159, 204 Forcible Entry, Restitution Commissioners De Oyer And Terminer, Bank Le Roy [1220] EngR 269; (1220-1623) Jenk 197; (1220) 145 ER 132 (B)
1220


Land, Constitutional
Commissioners of oyer and terminer have no power to exclude upon the statute of forcible entry : for the statute of 8 H 6, cap. 3, which provides an enquiry and restitutiori in this case, appropriates it to the justices of peace : but the judges of the King’s Bench are wittin the statute ; for the King sits there, and where the King sits est plenitudo potestatis. Proprietates verborum tuendae sunt.
[ Commonlii ]
 
Case LIII 2 H 4, 23 Jointenants, Petition, Scire Facias, Joinder In Actions [1220] EngR 253; (1220-1623) Jenk 78; (1220) 145 ER 56 (B)
1220


Land
There are two jointenants in fee, their land is seised into the King's hands ; each of them may hy himself sue a petition of right to the King: and if the King has granted this land; upon a scire facias upon such petition against the Kings patentee ; the jointenancy of the plaintiffs is not a plea for the patentee. By all the judges.
This also seems to be the law in a monstrans de droit and a traverse ; for they are not properly actions. An action does not lie against the King. But regularly jointenants ought to join in actions real and personal.
[ Commonlii ]
 
24 H 8 Co Lit 130 A Br Cases, 53 Corone, Felony, Praemunire [1220] EngR 347; (1220-1623) Jenk 199; (1220) 145 ER 134 (B)
1220


Land

[ Commonlii ]
 
Case XXIX 19 E 3 Co Lit 222 A B 2 Co 80 A Fitz Entry Congeable, 39 18 Ass Ult Tourson's Case, 8 Co 170 B, 91 A Cromwell's Case, 4 Co 27 [1220] EngR 220; (1220-1623) Jenk 16; (1220) 145 ER 13 (A)
1220


Land
A tenant in capite obtains the King's licence to enfeoff two of the manor of Dale, upon condition to give it back to him in tail, the remainder to E. iri fee ; the feoffment was made to two accordingly ; A. afterwards dies, his heir being within age, afterwards the gift was made to the heir of the body of A. the remainder ut supra. Resolved, that this licence doth not extend to give this land to the heir of the body of A. but a new licence is necessary ; and the obtaining of this licence is a new charge to the land suffered by the two feoffees, and therefore in this case the condition is broken. A. dies seised of other land held of the King in capite, his dying seised of this land, and all this other matter is fond by office. The Kirig shall seize the said manor for the breach of this condition, in right of the said heir being within age, and shall have all the profits of it, as guardian after the deat of A.
By all the justices.
Verba accipienda sunt cum effectu.
[ Commonlii ]
 
Case XXXVII 21 E 3 Fitz Nusance, 2 and 3 [1220] EngR 305; 3 2 Ass pl 1 Case 26 Chimin 27 H 8, 72; (1220-1623) Jenk 20; (1220) 145 ER 15 (B)
1220


Land
A. by deed grants a way to B. in fee over the land of A. in Dale, from a certain place to a certain place There ought to be a specialty of this grant ; and if A deforces him of it by stopping or any obstruction, covenant lies : not an assise of nuisance.
[ Commonlii ]
 
Case XXXV 1 H 7, 18 4 H 7, 1 Co Lit 30, B Gard, Intrusion, Dower, Tenant, Per La Curtesy [1220] EngR 22; (1220-1623) Jenk 171; (1220) 145 ER 112 (B)
1220


Land
The King's tenant in capite dies, his heir within age ; before office found, he may enter and take the profits ; and after office found, he ought to waive the possession and answer to the King for the profits taken.
[ Commonlii ]
 
Case XXVII 1 H 7, 13 Parliament, Equity, Tail, Corone [1220] EngR 19; (1220-1623) Jenk 168; (1220) 145 ER 110 (A)
1220


Land
The Crown is intailed to the King by act of parliament, with all the prerogatives and franchises belonging to it : this act does not extend to take away the liberties or franchises, which lords or others have by charter, or lawful prescription.
[ Commonlii ]
 
Case XXXII 1 H 6, 5 By All The Judges of England Comprise, Trial [1220] EngR 16; (1220-1623) Jenk 117; (1220) 145 ER 82 (C)
1220


Land
A brings trespass against B. de clauso fracto in Dale, B. pleads a recovery in assise, against A. by, himself, of the land ; the plaintiff replies that it was not comprised within the recovery by assise : the trial shall be by jurors without any of the former assise. It is otherwise, when an assise is brought, and such recovery pleaded : there the trial shall be by some of the jurors of the first assise, and by others. For damages are only to be recovered in the first case ; but in the latter, the freehold.
[ Commonlii ]
 
Case LXIX 1 El Dyer, 177 3 Mar Dyer, 128, 376 2 Co, 17 B 9 Co 31 B Moor 111, 779 2 Ro Rep 101 [1220] EngR 14; (1220-1623) Jenk 220; (1220) 145 ER 151 (C)
1220


Land

[ Commonlii ]

 
 Case LXIII 1 El Dyer, 169 Patents, Forest Palm 88 2 Buls 290; 1220 - [1220] EngR 12; (1220-1623) Jenk 218; (1220) 145 ER 149 (B)
 
Case LXII 1 El Dyer, 166, 324, 96, 314, 323 11 H 4, 52 15 H 7, 11 Perkins, 108, 408 19 H 8, 11 33 H 8 Br Cases Hob 349, Earl of Ormond's Case 2 Leon 139 Moor 515 4 Leon 166, 210 Dyer, 324, 325 [1220] EngR 11; (1220-1623) Jenk 217; (1220) 145 ER 149 (A)
1220


Land
A. seised of diverse manors in fee, before the statute of 27 H. 8 of Uses, makes a feoffment in fee of those manors to B to the use of his last will ; and afterwards by indenture declares that his intent was that B. should pay his debts, and afterwards conveys those manors to A and his wife in tail, the remainder to A in fee ; A died before the statute of uses. Resolved by all the judges of England, that no use rested in A and his wife, until an estate-tail be made to them ; and ttiat this indenture does not amount to a declaration of the last will of A. (which can only take effect by his death) for the gift in tail to him and his wife, is to take effect in his lifetime ; which cannot be, if it be taken for a will : and also the wife is a stranger to the land.
[ Commonlii ]
 
CASE XLI 2 Cr 8, 302-3 Hob 6, Brock v Spencer [1220] EngR 236; (1220-1623) Jenk 294; (1220) 145 ER 214 (A)
1220


Land, Torts - Other
Trespass in Dale, the defendant pleads that the place alledged in the new assiginment is parcel of a manor or in parochia de Dale praedict. Upon not guilty pleaded, the visne shall be of Dale ; for the word preedict makes the vill and parish all one.
Judged in the Exchequer-chamber.
[ Commonlii ]
 
Case XLIV 40 Eliz 2 Co 59 A, Sir Julius Winnington's Case [1220] EngR 523; (1220-1623) Jenk 253; (1220) 145 ER 180 (A)
1220


Land

[ Commonlii ]

 
 Case XXV 7 Co 40 A B, Bedel's Case Uses, Covenants, Inrollment; 1220 - [1220] EngR 599; (1220-1623) Jenk 289; (1220) 145 ER 209 (B)
 
Case XXXII 26 H 8, 3, Four Times Adjudged, Gavelkind, Rent [1220] EngR 357; (1220-1623) Jenk 205; (1220) 145 ER 138 (E)
1220


Land, Wills and Probate
Rent is grantecl out of gavelkind land to A. in fee; the rent follows the nature of the land, and shall be shared among male heirs.
[ Commonlii ]
 
4 Mar Dyer, 150 Br Cases, 186 Devise, Authoprity and Poyar [1220] EngR 517; (1220-1623) Jenk 215; (1220) 145 ER 147 (B)
1220


Land, Wills and Probate

[ Commonlii ]
 
Case XX 36 H 8 Dyer, 61 By The Judges of Both Benches Challenge, Hundredors, Panel Sec 4 And 5 Anne;, Cap 16 That Venires At Westm Are To Be De Corpore Comitatus [1220] EngR 456; (1220-1623) Jenk 201; (1220) 145 ER 135 (C)
1220


Land, Landlord and Tenant
Cestuy que use for life (after the statute of 1 R 3, which enables cestuy que use to make leases, and before the statute, of 37 H 8, of uses) makes a lease to A. for the life of A cestuy que use dies : A. is only a tenant at sufferance. An act of parliament cannot work a wrong ; and this Act guides this conveyance, and does not suffer it to extend beyond tbe estate of him who made the lease. 'Tis otherwise of a lessee for life, who makes a feoffment, at common law he has gained a fee-simple : and this case is, and remains at common law, not directed by any Act of parliament. An attorney has power to make a lease for the life of the lessor; he makes a lease for the life of the lessee : this lease is void : in this case, if the lessee enters, he is a disseisor- 'Tis otherwise in the principal case : for the said attorney had only a power, and exceeded it ; in the principal case, the interst of the use is accoupled with the power of the statute As where the statute of 32 II 8 gives a power to devise to any person two parts of land holden by knight's service ; a man devises the whole : this is good for two parts, by reason of the interest and power in the same person, in the devisor.
[ Commonlii ]
 
35 H 6, 52 28 H 8 Br Livery, 55 Br Cases, 187, 78, 113, 114 12 H 4, 18 Stamf Praer 10 Dally, 90, Pl 8 Co Lit 77 A F N B 258, 256 Gard, Livery, Charrel Br Cases, 322 By 12 C 2, Ch 24, These Tenures And Services Are Abolish'D [1220] EngR 445; (1220-1623) Jenk 113; (1220) 145 ER 80 (A)
1220


Children, Land
No livery shall be sued by any heir, if the tenure be not of the King by knight's service in capite, or in socage in capite, if the heir be of full age at the time of the death of his father, he shall pay half a year's value of the land : if the tenure be socage in capite, such heir shall pay relief: if he be fourteen years of age at the time of the death of his ancestor, he shall pay nothing. Where the King has a ward, because of another ward who is the King's tenant in capite by knight's service ; and the ward because of ward comes first to full age, he shall sue his livery ; but not where his guardiian has sued his livery before him : but though his guardian has sued his livery before him, yet the King shall retain the land and body of the ward because of ward till his full age. So shall every other lord do who has a ward because of ward ; if he has not the seigniory by a defeasible title : if so, the entry of him who has right shall avoid it : so of a mortgage redeemed, and a seigniory granted upon condition. The heir of the King's tenant by knight's service, not in capite, at his full age, after he has paid relief, shall have an ouster le maine. The King's tenant of lands within the Dutchy of Lancaster shall sue livery, but not for lands held of the dutchy, and lying out of the dutchy. 21 E. 4, 60. 26 H. 8.
[ Commonlii ]
 
Case XXIX 28 H 8 Co Lit 55 B Dyer, 31 11 Co 46, Liford's Case 1 El Dyer, 173 5 H 7, 18 [1220] EngR 368; (1220-1623) Jenk 204; (1220) 145 ER 138 (B)
1220


Land

1 Citers

[ Commonlii ]
 
Case LXXII 36 H 6, 5 [1220] EngR 453; (1220-1623) Jenk 88; (1220) 145 ER 63 (B)
1220


Land
The King's tenant by knight's service in capite, gives his land to A, for life, the remainder to B. in tail ; he in remainder dies, his heir within age ; afterwards tenant for life dies ; this heir shall be in ward to the King, if the King will. This case is so abridged by Fitz. title (Gard, 57. Br. Abridging this case, title Gard., 4, cites the remainder to be in fee to B with which which. 37 H. 8, 26, agrees. See the statute of 34 E. 3, ch. 15, it seems to me, that thi: King shall not have the wardhip of this heir, for the reversioner is tenant to the King. The bishop of Durham, who has jure regalia, in such case could not have the forfeiture for treason of the land of such tenant in tail, for he was not his tenant: and the statute of Westm. 2, de donis, divides the estate tail from the reversion, and makes them two estates ; and binds the King : and before the said statute of Westm. 2, de donis, and the statute of Quia emptores terrarum, the King's tenant might infeof another to hold from him, and so deprive the King of his antient tenant in demesne. And though the alienation was without licence, this was not material ; for, by the statute of 1 K. 3, ch. 12, this alienaition shall stand, and is only finable.
[ Commonlii ]
 
7 E 4, 16 Stamf Praer 14 Gardship, Tenures Aut 123 [1220] EngR 602; (1220-1623) Jenk 127; (1220) 145 ER 89 (C)
1220


Land
Tenure in burgage of the King, and that the heir of the tenant is within age, is found by an office returned into the Chancery ; the King grants this land to A in fee : a scire facias shall be awarded against A. to restore the land to the heir : but if it be not granted, arid only seised into the King's hands, a supersedeas shall be awarded to remove the King's hands. For tenure in burgage is common socage ; it is a tenure as of a city, town or borough ; the King has nothing to do with the heir whether he be utder fourteen years of age, or above fourteen, and under twenty-one.
[ Commonlii ]
 
Anonymous (CARY II) [1465] EngR 3; (1465-66) Cary 11; (1465) 21 ER 6 (D)
1465


Land

[ Commonlii ]
 
Anon (1469) Y B 9 Edw 4
1469


Land
Title deeds 'follow the land' and are inherited as real estate with the land.

 
Prior of Southwards [1498] YB Henry 7 26
1498


Land, Nuisance
The prior complained because the defendant, who was a glover, had made a lime pit for calf-skins so close to a stream as to pollute it. Held: If the glover had dug the lime pit in the prior's soil, the action ought to be in trespass: but if it was made in the glover's soil it should be in case.
1 Citers


 
The Abbot of Crosraguell v John Hamilton [1504] Mor 7933
12 Mar 1504
SCS

Scotland, Land
Found that religious houses could not be let in tack or feued.
[ Bailii ]
 
The King v Schir Johne Hay [1505] Mor 16558
6 Feb 1505
SCS

Scotland, Land
All landis halding of the King, utherwayis nor in fre burgage, ar haldin in blanche ferm, or in few ferm, or be service of ward and relief, or in name of pure and fre almonis. De quatuor mod. ten. ter. de Rege.
Item, Landis haldin be ony man, of ony superior or over-lord, reddendo servitia debita et consueta, the samin is understuid to be halden be service of ward and relief, except in his infeftment relation be maid ad formam et tenorem antiquae cartae; for in this cais the manner of halding of the saidis landis sould be reulit and understuid, conform to the halding contenit in the auld chartour, gif ony be
[ Bailii ]
 
The King v Earl Crawfurd [1530] Mor 3007
27 Jan 1530
SCS

Land
Gif the superiour of ony landis callis and persewis his tenant, possessour of the samin, to heir and see the samin decernit to be in his handis, be ressoun of non-entres of the richteous air thairto, the samin landis, or ony part thairof, pertening to ony Lady or woman in conjunct-fie, on na wayis sould be decernit to be in non-entres during the time and space of the said conjunct fie.
[ Bailii ]

 
 Robert Cairnis v Robert Leyis; SCS 3-Jul-1533 - [1533] Mor 827

 
 George Earl of Huntly, Supplicant; SCS 13-Mar-1545 - [1545] Mor 454

 
 Comptroller v Lord Semple; SCS 15-Feb-1555 - [1555] Mor 212
 
Tyrrels' Case (1558) Dyer 155
1558


Land, Trusts
In the case of a use upon a use, the 1535 Statute did not work to execute the second use.
Statute of Uses 1535


 
 The Queen and The Abbot of Coupar, Donatour v The Laird of Duffus; SCS 31-Jul-1558 - [1558] Mor 846
 
Case of the Duchy of Lancaster (1561) 1 Plow 213
1561


Land, Constitutional
Queen Elizabeth I wished to know whether a lease granted by Edward VI of some land within the Duchy while under the age of 21 ("during his nonage") was voidable. Held: It was not voidable. The king's natural body was inseparable from his body politic (a corporation sole), which was never under age. Seisin can only pass to the Crown as a matter of record. Furthermore, seisin could not therefore pass to the Crown either by livery of seisin or by the disseisin of a subject's land by a Crown servant.
1 Citers


 
Grundiston v Lawson [1561] Mor 8978
6 Mar 1561
SCS

Land
In the action and cause pursued by David Grundiston against James Lawson, for reduction of an infeftment of a tenement of land lying in the town of Cupar of Fife, made by the said David to the said James, it was alleged by the said David, That when he analzied the said lands, he was within the age of 14 years, or thereby, and therefore the said alienation was null in itself, and ought to be reduced, and all that followed thereupon. It was answered by the said James, That the said David was above the age of 14 years when he made the said alienation, and never made revocation thereof when he came to perfect age given to him of the law for revocation of any thing done by him in his minority, and so he being past the perfect age, together with his four years before the raising of the said summons and intenting of the said plea of reduction, he might never come against the said alienation; which allegeance of the defender's was found relevant by the Lords, and given to his probation.
[ Bailii ]
 
Laird of Blanerne v Laird of Restalrig [1561] Mor 3722
19 Jun 1561
SCS

Land
A comprising was found null, because the lands lying within a regality, the denunciation was made, not at the head burgh thereof, but at the head burgh of the shire.
[ Bailii ]
 
The Treasurer v John Sinclair of Dryden [1561] Mor 8024
31 Jul 1561
SCS

Land
Gif ony man findis caution and sovertie of lawborrowis to ane uther, under ane certane pane, and thairefter brekis the samin, the King has just actioun and cause to persew him, or his cautioner and sovertie, for the haill sowme and pane under the quhilk the lawborrowis wer fund.
[ Bailii ]
 
The Master of Errol v N Keith [1563] Mor 5114
9 Jul 1563
SCS

Scotland, Land
Gif ony man obtenis ane gift of non-entres, and be vertue thairof raisis summoundis aganis the heritabill possessouris of the samin landis, and thairefter, pendente lite, deceissis, his air is preferrit to all uther persounis obtenand ane uther gift of non-entres of the samin landis, after the dait of the gift foirsaid.
[ Bailii ]
 
The Case of A Fine Levied By The King Tenant In Tail, and co [1572] EngR 390; (1572-1616) 7 Co Rep 32; (1572) 77 ER 459
1572


Land
The King being tenant in tail by a gift made to some of his ancestors being subjects, may by fine levied on a grant aud reader bar the estate tail : but after the render made it seems necessary to have letters patent to grant to the conusee by express words, that he may enter into the land.
Where the King claims in respect of his natural capacity as heir of the body of a subject per furmam doni, he shall be bound by an Act of Parliament.
But where he claims in his Royal and politic capacity, a General Act shall not, bind him, unless he be expressly named, except in special cases.
[ Commonlii ]
 
Richard Liford's Case [1572] EngR 311; (1572-1616) 11 Co Rep 46; (1572) 77 ER 1206
1572


Land

1 Cites

1 Citers

[ Commonlii ]
 
Higginbottom's Case [1572] EngR 188; (1572-1616) 5 Co Rep 19; (1572) 77 ER 79
1572


Land
Covenant to make further assurances, by counsel of the covenantee, on request made, shall be advised the counsellor should give his counsel to the covenantee, and the covenant must give notice thereof to the covenantor.
[ Commonlii ]
 
Walsingham's Case (1573) 2 Plowd 547; [1573] EWHC KB J99; 75 ER 805
11 Jan 1573


Land
An owner of an estate in fee simple “has a time in the land without end, or the land for time without end," and "An estate in the land is a time in the land, or land for a time." and "the land itself is one thing, and the estate in the land is another thing, for an estate in the land is a time in the land, or land for a time, and there are diversities of estates, which are no more than diversities of time"
[ Bailii ]
 
Browns Case [1581] EngR 13; (1581) 4 Co Rep 21; (1581) 76 ER 911
1581


Land, Wills and Probate
A copyholder dies, leaving a son and a daughter by one venter, and a son by another venter ; the premises being in lease for years by licence ; the eldest son dies before admittance; held that the daughter should inherit, not the son. Held also, lst, That though a copyholder has, in judgmerit of law, but an estate at will, yet custom has so established his estate that it is descendible, and his heirs shall inherit, and so his estate is not merely ad voluntatem domini, but ad voluntatem domini secundum consuetulinem manerii. 2nd. That since custom has created such inheritance, the descent shall be directed according to the rules of the common law, as in the case of uses: but it does not partake of the collateral qualities of descent of other inheritances; not being assets, nor subject to dower or curtesy, without a special custom, nor tolling entry by descent cast. 3rd. That the heir before admittance may enter, and take the profits; and there may be a possessio fratris, and his surrender is good, but without prejudice to the lord's fine.
The Lord may enter on his copyholder for non-performance of his services : but if he ousts him without a cause, the tenant may have trespass.
AIienation by a copyholder is a disseisin of the lord, and a forfeiture of his estate.
A copyholder cannot have a writ of false judgment on an erroneous judgment against him, but may sue to the lord by petition.
A surrender may be on condition reserving rent.
Grants by copy by bishops bind their successors, and the King, when the temporalties are in his hands, and the grantee may have aid of the King.
The admittance of a particular tenant is the admittance of the remainder-man, but without prejudice to the lord's fine.
An admittance to a copyhold may be pleaded as a grant.
A copyhold in fee is but a particular estate.
[ Commonlii ]
 
Bland v Moseley (1587)
1587


Land
The court distinguished the elements of an easement of light. In the absence of an easement, a building may be erected so as to restrict the flow of air onto his neighbour's land.
1 Citers



 
 Bury v Pope; 1587 - (1587) Cro Eliz 118
 
A v B [1589] Mor 10717
1589
SCS

Land
There was an obligation sought to be registered, which contained the discharge of a reversion, and to make lands redeemable. It was alleged, That it was 50 or 60 years since the making of the said obligation, and so, according to the act of Parliament, prescribed. Answered, That because the obligation and bond thereof were heritable, et sapebant naturam haereditatis, it could not be comprehended under the act, and so was found by the Lords.
[ Bailii ]
 
Sibbald v Oliphant [1589] Mor 9333
1 Jun 1589
SCS

Land
Sibbald of Rankeilour, as donatar and assignee to non-entries of a part of the lands of Kilmarour, pursued Oliphant the son of umquhile Barnard Oliphant, to hear and see the said lands to be in non-entries. It was excepted by the defender, offering him to prove, that the lands were feu continually by the space of 36 years immediately preceding the intenting of the action by the pursuer, and three sasines standing successive unreduced and quarrelled, and also a confirmation of our Sovereign Lord, of certain sasines past before. It was answered, That the exception could, in no manner of ways, be relevant, except he would allege the lands to have been feu, at least by the space of 40 years irtimediately preceding the first gift of non-entries, and the action that was first pursued by the first donatar. The Lords, notwithstanding of this allegeance, found the exception relevant for the space of 36 years.
[ Bailii ]
 
Colluthie v Dundas [1590] Mor 5096
1590
SCS

Land
In a competition between two gifts of escheat, the second, on which declarator was first raised, was preferred.
[ Bailii ]
 
The case of Swans (1592) Co Rep 15b
1592


Animals, Land
Wild animals belong to nobody even if found on land.

 
Cogan v Cogan (1596) Cro Eliz 360
1596


Land
A legal remainder was void if it was limited so that it took effect by defeating the particular estate: 'The remainder must wait for the regular ending of the estate.'


 
 Leeds v Shakerley; 1599 - [1653] EngR 1212; (1599) Cro Eliz 751; (1653) 78 ER 983 (A)

 
 Colquhouns v L of Luss; SCS 1600 - [1600] Mor 560 (A)
 
Lutrell's Case (1601) 4 Co Rep 86a
1601


Land
A prescriptive right to a watercourse was not lost by the dominant owner demolishing two ancient fulling mills and erecting in their place two new corn grinding mills. The Exchequer Chamber held that the dominant owner "might alter the mill into what nature of a mill he pleased, provided always that no prejudice should thereby arise, either by diverting or stopping of the water, as it was before ".
1 Citers


 
Drury v Kent (1603) Cro Jac 14
1603


Land
"he could not grant it over, for he hath it quasi sub modo viz. for the beasts levant and couchant; . . but common appurtenant for beasts certain may be granted over."
1 Citers



 
 Clark v Cogge; 1607 - (1607) Cro Jac 170; [1607] 79 ER 149; [1791] EngR 208; (1791) Cro Jac 170; (1791) 79 ER 149 (A)

 
 Perpetuity; Poole v Poole; 1607 - [1607] EngR 2; (1607) Toth 146; (1607) 21 ER 150 (A)
 
Swayne's case (1609) 8 Co.Rep. 63a
1609


Land
No lord of the manor could, by alienation, deprive those entitled of their rights over it or in respect of it.
1 Citers


 
The Six Carpenters' Case [1572] EngR 452; (1572-1616) 8 Co Rep 146; (1572) 77 ER 695
1610


Land, Torts - Other
Resolved - 1. When an entry, authority, or licence, is given to any one by the law, and he abuses it, he shall be a trespasser ab initio: but not where the entry, authority, or licence, is given by the party. 2. An act of omission cannot make a party a trespasser ab initio.
Note. * Tender upon the land before the distress, makes the distress tortious ; tender after the distress, and before the impounding, makes the detainer and not the taking wrongful ; tender after the impounding, makes neither the one nor the other wrongful.*
* If the plaintiff makes a sufficient tender after the avowant has return irreplevisable, he may have an action of detinue for the detainer after; or he may, upon satisfaction made in Court, have a writ for the re-delivery of the goods.
1 Citers

[ Commonlii ]
 
Liford's Case (1614) 11 Co Rep 46b
1614


Land
The owner of land may grant to a man and his heirs the right to take, for instance, all the wood or all the grass that shall grow upon the land of the grantor. A dominant owner of an easement has a right to enter the servient owner's land for to repair or maintain the land but only to do necessary work in a reasonable manner.
1 Cites

1 Citers


 
The King and Another v Countess of Arundel and Another [1616] EWHC Ch J11; (1617) Hobart 109; (1616) 80 ER 258; [1572] EngR 17; (1572-1616) 6 Co Rep 14; (1572) 77 ER 273
22 May 1616
CCP
Coke LJ, Sir Henry Hobart
Land, Constitutional

[ Bailii ] - [ Commonlii ]
 
Aldred's Case (1619) 9 Co Rep 57 b; (1619) 77 ER 816
1619


Land
An action would lie where a pig-stye was erected so close to the plaintiff's house as to corrupt the air in the house, and also and similarly for a lime-kiln with smoke, or where filth from a dye house runs into a fish pond. Where the plaintiff claims that an easement has been acquired by prescription, the defendant cannot set up another easement to destroy that easement. Though an action will lie for obstruction of light, it will not for an obstruction of a prospect: "The law does not give an action for such things of delight."
1 Cites

1 Citers


 
Reeve v Digby (1638) Cro Car 495; (1638) 79 ER 1027
1638


Land
A claim was made that the defendant had disturbed the common by digging and removing turf and by digging a fish pond. Held: A finding that the digging of turfs was a disturbance but not the construction of the pond was not repugnant because the allegation was for disturbance in different respects.

 
The Duke of Norfolk's Case, Or The Doctrine of Perpetuities [1649] EngR 28; (1649-1779) 3 Chan Cas 1; (1649) 22 ER 931
1649


Land

[ Commonlii ]
 
Spittle v Davis [1650] EngR 15; (1650) Owen 55; (1650) 74 ER 895
1650


Torts - Other, Land
In a replevin, the case was; One Turk seised of lands in fee, devised parcell thereof to his eldest son in taile, arid the other parcell to his youngest son in fee. Provided, and his intent was, that if any of his sons or any of their issues, do alien or demise any of the said Iands, before any of them comes to the age of thirty years, that then the other shall have the estate, and does not limit what estate, and then one of the sons makes a Iease for years before such age, whereupon the other enters, and before he comes to the age of thirty years, he aiiens that part into which he made entry, and the other brother beirig the eldest enters and makes a lease to Spittle the plainiff for three years, and Davies by commandment of the younger brother enters, and takes a horse damage-feasant, and Spittle brought a replevini : and upon demur, it seemed to the Court, that this was a limitation, and by vertue of the will the estate devised to them untill they aliened, and upon the alienation to go to the other; and upon such alienation the land is clischarged of all limiitations, for otherwise the land upon one alienation shall go to one, and upon another alienation should go back again, arid so to and fro ad infinitum, vide Dyer 14. and 29. And afterwards all the Judges agreed, that after one brother had entred into the land by reason of the alienation that land was discharged forever of the limitation by the will ; and judgment was given accordingly.
[ Commonlii ]
 
Trin 4 and 5 P and M [1651] EngR 268; 5 P & (1651) Benl 15; (1651) 73 ER 942 (A)
1651


Land

[ Commonlii ]
 
Grissell And Sir Christopher Hodsden's Case [1653] EngR 878; (1653) Godb 156; (1653) 78 ER 95 (C)
1653


Land
In the case it was agreed for law, that if two lords be tenants in common of a waste, and each of them hath a court, in which are divers by-lawes made, it ought to be presented by the homage, that such a one hath not any thing in the common ad exhaeredtionem domini, and not dominorum, notwithstanding that they are tenants in common.
[ Commonlii ]
 
Smy v June and Alios [1653] EngR 1829; (1653) Cro Eliz 219; (1653) 78 ER 476
1653


Land
The use of a fine to A. and his eldest son, and the heirs male of the son does not make an estate tail.
[ Commonlii ]
 
Woodliff v Drury [1653] EngR 2230; (1653) Cro Eliz 439; (1653) 78 ER 679 (A)
1653


Trusts, Land

[ Commonlii ]
 
Lovelace v Reynolds [1653] EngR 1259; (1653) Cro Eliz 546; (1653) 78 ER 792 (B)
1653


Land
If the jury find the defendant has common by prescription prout he has prescribed, "paying for it every year one penny to the plaintiff," the verdict is with the plaintiff.
[ Commonlii ]
 
Doctor Wood v Greenwood [1657] EngR 142; (1657) Het 135; (1657) 124 ER 402 (B)
1657


Land, Ecclesiastical
Claim for tithes
[ Commonlii ]
 
Pope v Reynolds [1657] EngR 431; (1657) Winch 44; (1657) 124 ER 38
1657


Land

[ Commonlii ]

 
 Bishop of Worcester v One of His Copyholders; 1660 - [1660] EngR 67; (1660-1706) 2 Freem Chy 137; (1660) 22 ER 1112 (D)
 
Cook v The Earl of Arundel and others [1660] EngR 87; (1655, 1656, 1657, 1658, 1659 and 1660) Hard 87; (1660) 145 ER 394 (C)
1660


Land
The case was upon English bill at the suit of Cook, to make the defendant's lands subject to the payment of a fee-farm rent, and to charge them with it
[ Commonlii ]
 
Rushworth and Al' v Countess De Pembroke and Currier [1660] EngR 221; (1655, 1656, 1657, 1658, 1659 and 1660) Hard 472; (1660) 145 ER 553 (B)
1660


Limitation, Land

[ Commonlii ]
 
Saunders v Hord [1660] EngR 225; (1660-61) 1 Rep Ch 184; (1660) 21 ER 544 (D)
1660


Land
Demur to a Bill for Redemption of a Mortgage, because of the Antiquity, and plead the Stat. 21 Jac. good.
[ Commonlii ]
 
Henry Vernon Port Formedon En Le Remainder v Thomas Stanley Chevalier [1664] EngR 134; (1664) 1 And 18; (1664) 123 ER 330 (C)
1664


Land

[ Commonlii ]
 
Abbott v Weekly (1665) 1 Lev 176
1665


Land
A custom that "the inhabitants of the vill, time out of memory, & had used to dance there at all times of the year at their free will, for their recreation" was held to be a good custom, and the land was established as a common.
1 Citers


 
Friend v Duke of Richmond (1667) Hardres 461
1667

Hale CB
Constitutional, Land
Two subjects brought action for ejectment. The defendant took the point that the claimant could not sue in ejectment. It was necessary to allege entry by a tenant. There could not be an entry, as the Crown had already obtained a judgment based on an information of intrusion and a person could not enter against the Crown. The plaintiff responded that he was not bound by the judgment, as he was not a party to that action and so he could allege an entry. Held: The objection was overruled. Sir Matthew Hale observed obiter that "And though the judgment in intrusion includes an amoveas manum, yet it extends only to such as may lawfully be amoved. And if the sheriff do otherwise, he is a disseisor; as if in a judgment against A., in a real action, he should oust B., who neither claims under A., nor is tenant to the action. And the King cannot gain anything by wrong; so that he cannot be a disseisor, but they that enter."
1 Citers


 
Baylye v Knighton [1669] EngR 47; (1669) Noy 143; (1669) 74 ER 1106 (B)
1669


Land
In a partitione facienda, by tenant in common against the other, an estrepment was granted, for all that the plaintiff had confest to be held in common, and not of more, for by such means, a man may be inhibited to cut his own bows, according to his occasions. But Benelowes. cap. 5. fo. 4. Seem'd, that an estrepment does not lie between tenants in common. But in M. 6 Jac. it was rul'd that the estrepment shall be granted, although that Cook Chief Justice held with Benelowes. But note, that in 5 Jac. An estrepment was granted in a partititione faciend. because it is a real action, and no damages to be recovered. And Brownlowe shewed many presidents contrary to Benelowes.
[ Commonlii ]
 
Mellor v Spateman (1669) 1 Saund 339
1669


Land
A corporation may prescribe to have a common of pasture.
1 Citers


 
Pomfret v Ricroft (1669) 1 Wms Saund 321; (1669) 2 Keb 543; (1669) 1 Sid 429; (1669) 1 Vent 26; (1669) 85 ER 454
1669

Twysdon J
Land
A lease was granted with the use of a pump on land not demised. The lessee complained of the lack of repair of the pump. Held: The lessee had a right to repair the pump, but the landlord did not have a duty to maintain it. Where land is granted to be used, everything necessary to support that use is carried. Twysdon J said: 'where a man having a close surrounded with his own land grants that close to another in fee for life or years, the grantee shall have a way to the close over the grantor's land as incident to the grant; for without it he cannot derive any benefit from the grant.' 'A way of necessity when the nature of it is considered, will be found to be nothing else but a way by grant. It derives its origin from a grant.'
1 Citers



 
 Daniel v Hanslip; 1672 - (1672) 2 Lev 67; 3 Keble 66
 
Bassett v Nosworthy (1673) Rep t Finch 102; [1673] EngR 111; (1673) Fin H 102; (1673) 23 ER 55
1673


Land
For the purpose of establishing whether a purchaser does so for value, the exact extent of consideration is not to be tested.
[ Commonlii ]

 
 Thomas v Sorrell; KBD 1674 - (1674) Vaughan 330; [1673] EWHC KB J85; 124 ER 1098-1113
 
Mountford v Sedley [1675] EngR 1155; (1675) Jones W 89; (1675) 82 ER 47 (A)
1675


Land

[ Commonlii ]
 
Ley v Luttrell [1676] EngR 318; (1676) 2 Rolle 159; (1676) 81 ER 724 (A)
1676


Land
Le defendant in brief de covenant plede performance generalment, sur ue Geo.
[ Commonlii ]
 
Bisco v Banbury (1676) 1 Ch Ca 287
1676


Land
A buyer may be taken to have notice of a fact where he had notice of one fact which should have led him to enquire as to another which would have put him directly on notice.

 
Smith and Wife, Hester, Ashton, Daughters of Ralph, And Infants, By Their Guardian v Beatrix Ashton Widow of Richard Ashton [1676] EngR 155; (1676) Fin H 273; (1676) 23 ER 150
1676


Family, Trusts, Land

[ Commonlii ]
 
William Wintle And Margaret His Wife, Herriot Washborne And Rachell His Wife v Barney Carpenter And John Pisburgh [1680] EngR 249; (1680) Fin H 462; (1680) 23 ER 250
1680


Land
Decree of Commission to set out the Boundaries, so that sixty Acres of Copyhold Lands might be distinguished from the Freehold of other Persons.
[ Commonlii ]
 
Newcomb v Bonham [1681] EngR 115; (1681) 1 Vern 7; [1681] 23 ER 266
1681


Land
A mortgage is made reemable during the life of the mortgagor only, yet his heirs shall redeem - And in this case the mortgagor may be foreclosed in his own lifetime. But where his decree was reversed on a hearing de integro and reversal affirmed in part.
1 Citers


 
Pollard v Luttrell [1682] EngR 314; (1682) Pop 108; (1682) 79 ER 1216 (A)
1682


Land

[ Commonlii ]
 
The Corporation of Ironmongers And Naylor [1685] EngR 3160; (1685) 3 Keb 783; (1685) 84 ER 1009 (F)
1685


Land

[ Commonlii ]
 
Corporation of Ironmongers v Naylor And Packston [1685] EngR 778; (1685) 3 Keb 719; (1685) 84 ER 971 (C)
1685


Land

[ Commonlii ]
 
The Corporation of Ironmongers And Naylor [1685] EngR 3161; (1685) 3 Keb 783; (1685) 84 ER 1010 (A)
1685


Land

[ Commonlii ]
 
Corporation of Ironmongers And Naylor [1685] EngR 779; (1685) 3 Keb 757; (1685) 84 ER 994 (C)
1685


Land

[ Commonlii ]
 
Pomfret v Ricroft (No 1) [1685] EngR 2602; (1685) 2 Keb 569; (1685) 84 ER 357 (D)
1685


Land

1 Cites

1 Citers

[ Commonlii ]
 
Pomfret v Ricroft (No 2) [1685] EngR 2601; (1685) 2 Keb 505; (1685) 84 ER 317 (D)
1685


Land

1 Cites

1 Citers

[ Commonlii ]
 
Pascha; Secundo and Tertio Ph and Mar [1689] EngR 250; (1689) 1 Ben & D 42; (1689) 123 ER 33 (A)
1689


Land

[ Commonlii ]

 
 Peers v Lucy; 1694 - [1694] 4 Mod Rep 355; [1694] ER 441
 
Harrison v Forth [1695] Prec Ch 51
1695


Land
Where a purchaser of land for value and without notice of a defect takes free of that defect, a subsequent purchaser is similarly not bound, even though he may have notice.

 
Pullen v Palmer (1696) 3 Salk 207
1696


Land, Trusts
The essential difference between tenants in common and joint tenants is that while tenants in common may hold their lands either by several titles or by several rights, joint tenants hold them by one title and by one right. There is no difference as to the possession and manner of taking profits.

 
Richards v Squibb (1698) 1 Ld Raym 726
1698


Land
A right to depasture a fixed number of beasts differs from a right for beasts levant and couchant. It is not confined to enjoyment by beasts levant and couchant on the dominant land and may be enjoyed by beasts that do not come from the tenement to which the right is appurtenant.
1 Citers


 
The Master, Wardens And Company of Ironmongers v Daniel Nayler And Richard Pacston [1702] EngR 96; (1702) Pollex 207; (1702) 86 ER 562
1702


Land

[ Commonlii ]
 
Regina v Duchess of Buccleuch (1704) 1 Salk 358
1704


Land

1 Citers


 
Anon (1704) 6 Mod 149
1704


Land
If a man has a right of any wreck thrown upon another's land he has a right of way over the same land to take it: "Originally all wrecks were in the Crown and the King has a right of way over any man's ground for his wreck; and the same privilege goes to the grantee thereof."
1 Citers


 
Rose Muirhead, The Widow of James Muirhead The Younger, of Bradisholm, Deceased v James Muirhead of Bradisholm [1709] UKHL Robertson_4; (1709) Robertson 4
14 Mar 1709
HL

Scotland, Land
Donatio non presumitur. A disposition by a father to his son, (followed by a sasine, which was not registered) made to preserve the estate from penalties of a test act, might be warrantably cancelled.
Qualified oath. - An oath received, though objected to as containing qualities.
[ Bailii ]
 
Hugh Wallace of Ingliston v Sir Alexander Hope of Kerse, Bart [1713] UKHL Robertson_91; (1713) Robertson 91
3 Jun 1713
HL

Scotland, Land
Jus Exigendi. - A Lady's jointure being secured on certain heritable debts but no infeftment taken, the husband's estate is forfeited during the Usurpation, but being afterwards restored to his heir, reserving the claims of the widow and others, and ordering those to refund, who had received grants out of the estate; the assignee of the widow's executrix had no jus exigendi of the sums received by these grants.
Subject Forfeiture under Cromwell's Usurpution.- The Earl of Forth, and Bramford being forfeited, and his estate seized, a bona fide creditor of the then government, is paid his debt by a grant out of the Earl's estate: on the restoration, the Court of Session found that the heir of such creditor was obliged to refund, but their judgment was reversed in the parliament of Scotland.
This last head is only mentioned incidentally but not decided in this case.
[ Bailii ]
 
James Don Esq; v Sir Alexander Don of Newton [1713] UKHL Robertson_76; (1713) Robertson 76
14 Jul 1713
HL

Land, Trusts, Scotland
An estate is entailed by a person to himself in liferent and to his eldest son and the heirs male of his body whom failing to the entailer himself, whom failing to his second and third sons, and the heirs male of their bodies &c. whom all failing to the father's nearest heirs and assignees: another estate is entailed to the second son of the former entailer and the heirs male and female of his body, whom failing to the said former entailer and his heirs male of tailzie and provision in the former entail; after failure of the institute in the second entail and the heirs male and female of his body, the heir male of the first entailer succeeds to the estate contained in the second entail.
Tailzie
An heir of entail prohibited from alienating gratuitously, where the prohibitory, irritant, and resolutive clauses, were referred to as contained in another entail.
At making an entail the institute reconveys to his father an estate formerly settled upon him, and he and his wife discharge an obligation upon the father by their contract of marriage; the institute, nevertheless, cannot gratuitously alter.
[ Bailii ]
 
Pomfret v Ricroft [1714] EngR 506; (1714) 1 Sid 429; (1714) 82 ER 1198 (D)
1714


Land

1 Cites

1 Citers

[ Commonlii ]
 
John Falconer Esq and Others, Creditors of Thomas Craig, Late of Riccarton, Esq Deceased v John Mushet and Others, Creditors of Robert Craig of Riccarton [1714] UKHL Robertson_110; (1714) Robertson 110
3 Jul 1714
HL

Land
Tailzie.- It being found that, in respect an entail, with prohibitory clauses, contained no irritancy of the right of the contravener, the debts of the heir in possession did equally affect the estate with the debts of his predecessors; the judgment is reversed.
An entail executed prior to the act 1685 sustained, though objection made that it was not registered in terms of that act.
Construction.- The Court of Session having found that the irritancy of the contravener's right in the entail of Riccarton did only respect the heirs female, and not the heirs male; their judgment is reversed.
[ Bailii ]
 
The Gubernators of Heriot's Hospital, and James Young Their Treasurer v Robert Hepburn of Bearford [1715] UKHL Robertson_118; (1715) Robertson 118
2 Jun 1715
HL

Scotland, Land
Kirk Patrimory - The superiority of certain church lands, which were purchased from the crown for an onerous consideration, and which were specially excepted in the act 1633, c. 13. "anent regalities of erection," part of the general re-annexing acts, found to be in such purchasers, where the vassal had taken charters and infeftments from the subject superior for near 100 years.
[ Bailii ]
 
Menzies v Menzies, Sisters and Muir Merchant In Aberdeen [1715] UKHL Robertson_139; (1715) Robertson 139
25 Jul 1715
HL

Land
Sale - A person who had purchased lands at a public sale, at 20 years purchase of a proved rental, afterwards claims deductions; 1st, Because the teinds were held by a tack from the College of Aberdeen then near expired; 2d, Because, as he alleged, the rental was too highly stated by one Chalder; 3d, Because he was kept out of his purchase for six years, during which time the person in possession only accounted for the rents, which were less than the interest the price; 4th, A deduction of certain expences he had been put to, in adjusting the debts due by the estate and in the person of the last possessor thereof. The Court having refused these deductions, and allowed the fetters 30 l. of expences, the judgment is affirmed.
In this case the purchaser had been employed as agent to conduct the sale, proof of rental, &c.
[ Bailii ]
 
John Murray of Conheath v James Murray His Younger Brother, Trustee for Elizabeth Maxwell Their Mother [1715] UKHL Robertson_144; (1715) Robertson 144
28 Jul 1715
HL

Scotland, Land, Wills and Probate
Fiar - The proprietor of an estate, burdened with apprisings, dying, leaves two lifters, whose husbands enter into a submission for themselves, and as taking burden upon them for their wives, with a person who had or appeared to have right to some of these apprisings; by the decreet arbitral, they are decreed to be conveyed to the husbands and their wives, the husbands paying the price; the wives were fiars of these apprisings, and not the husbands
[ Bailii ]
 
Sir John Schaw, of Greenock, Bart v Dame Margaret Schaw, Alias Houston, and Sir John Houston, Bart Her Husband (1718) Robertson 203; [1718] UKHL Robertson_203
10 Mar 1718
HL

Scotland, Land
Tailzie - A father infeft in an estate in life-rent, and a son infeft in fee, jointly entail the estate in the son's contract of marriage, with prohibitory, irritant, and resolutive clauses, and with a proviso, that the father and son should jointly have power to alter; this entail was insert in the register of tailzies upon the joint supplication of the father and son, but no resignation was made nor infeftment taken thereon: the irritancies and clauses not to alter were binding upon the son (after the father's death) even supposing the substitution were gratuitous.
[ Bailii ]
 
Sir Harry Peachy v Duke of Somerset (1720) 1 Strange 447
1720

Lord Macclesfield
Land, Equity
Lord Macclesfield said: "The true ground of relief against penalties is from the original intent of the case, where the penalty is designed only to secure money, and the court gives him all that he expected or desired: but it is quite otherwise in the present case. These penalties or forfeitures were never intended by way of compensation, for there can be none."
1 Citers


 
William Brown, Merchant In Edinburgh, and Andrew Ross, Master of The Woollen Manufactory At Musselburgh v Robert Earl of Morton [1720] UKHL Robertson_254; (1720) Robertson 254
3 Feb 1720
HL

Scotland, Land
King's annexed Property - A person, to whom part of the annexed property had been granted, creates a heritable security thereon: his grant is afterwards reduced, and the decree confirmed by an act of reannexation: an act of disannexation is subsequently made, and a new grant of part of the premises passed to the representative of the family of the original grantee, though not his heir: this does not revive the heritable security granted by him.
[ Bailii ]
 
The Commissioners and Trustees of The Forfeited Estates v James Duke of Hamilton and Brandon, A Minor, By His Curators and Commissioners [1720] UKHL Robertson_274; (1720) Robertson 274
26 Feb 1720
HL

Scotland, Land
Thirlage - An act of parliament gives to subject superiors the forfeited estates of their vassals: the Earl of Linlithgow being attained, forfeited to the Duke of Hamilton a mill held of his Grace as superior; but the earl having thirled part of his estate, held of the Crown, to this mill, this thirlage was not forfeited to the Duke of Hamilton.
[ Bailii ]
 
James Farquhar of Gilmillscroft v The Right Hon Hugh Earl of Loudoun [1720] UKHL Robertson_303; (1720) Robertson 303
5 Jun 1720
HL

Scotland, Land
Kirk Patrimony - In 1631, certain vassals in church lands advanced money to the Crown, to assist in redeeming a wadset granted to the Earl of Loudoun, the lord of erection, upon condition that they should hold of the Crown as superior, and have certain other privileges: in 1633, the superiorities of all church lands were gratuitously annexed to the Crown; and about same time vassals who should advance money for redeeming their feu duties were allowed by his majesty to treat with the treasury for that purpose, and to retain their feu duties in proportion to the sums advanced. In a question between the wadsetter and the vassals, who advanced money in 1631, it is found that they were not allowed to retain their feu duties, though they had paid money for privileges, the greatest part of which had been granted to other vassals gratuitously.
[ Bailii ]
 
Lovat v Emilia Lady Dowager of Lovat Mackenzie an Infant and Others [1721] UKHL Robertson_355
1 Apr 1721
HL

Land
A disposition is made of an estate to one person in life-rent, and to others in fee, with the burden of payment of the grantor's debts: in a competition between the grantee of the life-rent escheat of the life-renter, and the debtors of the grantor of the disposition, the Court found that these debts were real, and did affect the estate; but their judgment is reversed.
A grantor of a deed declares, that if children's portions are not paid in his lifetime, persons whom he names may appoint a factor, after his death, to receive certain rents, and pay these portions: these portions were real debts affecting the estate
[ Bailii ]
 
Sir Harry Peachy v Duke of Somerset [1721] EngR 367; (1721) Prec Ch 568; (1721) 24 ER 255
16 Jun 1721


Land, Equity
A court of equity will not assist a copyholder against a forfeiture, which is found such at law, unless in cases where compensation can be made.
1 Cites

[ Commonlii ]
 
Ravenhill v Dansey [1723] EngR 33; (1723) 2 P Wms 179; (1723) 24 ER 690
1723

Lord Macclesfield
Land
A reversionary term raised for securing maintenance and portions for daughters, shall in case of necessity, be mortgaged to pay either, and when fallen into possession shall pay all the arrears of maintenance incurred before it came intom possession.
[ Commonlii ]
 
Elizabeth Duchess Dowager of Hamilton and Brandon v James Duke of Hamilton and Brandon, and Alexander Gillies [1723] UKHL Robertson_443; (1723) Robertson 443
21 Jan 1723
HL

Scotland, Land
Fiar and Life-renter - The Court of Session having found, that a fiar had the right to cut and sell woods growing on part of an estate, that was life-rented, the judgment is reversed.
[ Bailii ]
 
Simon Lord Lovat v Hugh, The Son of Alexander Mackenzie of Fraserdale, Stiling Himself Hugh Master of Lovat [1723] UKHL Robertson_449; (1723) Robertson 449
22 Jan 1723
HL

Scotland, Land
Life-rent Escheat - Aliment of the Fiar - An estate being settled by entail, upon a person in life-rent, and a certain series of heirs in fee, with the burden of an aliment to the first substitute: the life-renter forfeits his life-rent escheat for treason; and the Court of Session having, in a competition with the donator, granted an aliment to the fiar, their judgment is reversed.
[ Bailii ]
 
The Company of Ironmongers v Nailer [1726] EngR 792; (1726) 1 Vent 311; (1726) 86 ER 201 (B)
1726


Land

[ Commonlii ]
 
Pomfret v Ricroft [1726] EngR 652; (1726) 1 Vent 26; (1726) 86 ER 18 (F)
1726


Land

1 Cites

[ Commonlii ]
 
Pomfret v Roycroft [1726] EngR 653; (1726) 1 Vent 44; (1726) 86 ER 32 (A)
1726


Land

1 Cites

1 Citers

[ Commonlii ]
 
Simon Lord Lovat v Sir James Mackenzie, of Roystoun, One of The Senators of The College of Justice; Roderick Mackenzie, Second Son of Alexander Mackenzie, Late of Fraserdale, and His Guardian; Mrs Emilia and Margaret Frasers [1727] UKHL Robertson_607; (1727) Robertson 607
13 Apr 1727
HL

Land
Donator of Esobeat competing with a Trustee - A father conveys his estates to a trustee for certain purposes; after the father's death, the trustee sells part of his estates, and bond for the price is taken in the name of the trustee's sons who of same date grants a back bond to the trustee, in terms of the father's trust deed; the son is afterwards denounced for treason, and his escheat granted to a donator, but he subsequently grants an assignation to his father's trustee, which, in a competition with the donator, is sustained.
Trustee - The creditors of a trustee could not affect the trust estate.
Competition of Creditors and Children - Certain creditors being preferred to a sum set apart for children's provisions, the creditors are ordained, upon receiving payment, to convey their rights to the children, to enable them to operate relief on other subjects of the debtor.
Consent of Party - The donator who consented to a decree of preference to the children, having contended that this consent did not extend to the creditors, who were preferred to the children, and petitioned to be heard against them, the prayer is refused.
[ Bailii ]
 
Scamler v Johnson [1729] EngR 214; (1729) T Jones 227; (1729) 84 ER 1230 (A)
1729


Agriculture, Land, Animals
Trespass quare clausum fregit, & herbam suam depastur. The defendant pleaded that J. Ramsey, long before the trespass, was seised of an ancient messuage with the appurtenances, and prescribed for common of pasture, in the plaintiff's close for his cattle, levant and couchant on tbe said messuage, with the appurtenances, and made title to the wife of Ramsey for her life, who bad entred & adhuc seisata existit, and conveyed to himself the said messuage at, the will of the wife, and justified utendo communia praedict'. Whereupon the plaintiff demurred. And Sanders for the plaintiff said, that the prescription is not good, for cattle cannot be levant and couchant on a messuage. Holt for the defendant, that the prescription is good, and a messuage comprehends the curtilage, which may be an acre or more, on which the cattle may be levant and couchant. And per Cur. the prescription is good, for it is not a common appendant but appurtenant, and such commori is usual in the county of Lincoln, and other counties, and that this is maintainable better for cattle levant and couchant than otherwise, 2. It was objected that the life of Frances ia not aver'd, and if she be dead, the defendant her lessee at will hath no title, But non allocatur; for (adhuc seisita existit) is a good averment of her life.
[ Commonlii ]
 
The Master, Wardens, And Commonalty of The Ironmongers, London v Daniel Nailer [1729] EngR 263; (1729) T Jones 85; (1729) 84 ER 1158 (D)
1729


Land

[ Commonlii ]
 
Lilias Borthwick v John Borthwick of Cruikston, Esq [1731] UKHL 1_Paton_53; (1731) 1 Paton 53
19 Mar 1731
HL

Land
Tailzie - An entail, containing prohibitory and irritant clauses de non contrahendo debitum, having been executed before the date of the act 1685, but not followed by infeftment until after it, and not recorded in terms of that act,-found not to debar the heir from granting bonds of provision to his younger children.
[ Bailii ]
 
Lake v Craddock (1729) 1 Eq Cas Abr 290; (1733) 3 P Wms 158; 24 ER 101 LC
1733


Land
Five people bought land It was conveyed to them as joint tenants in fee, but they contributed rateably. Some died, and one took no part for thirty years. Held: The absent owner was re-admitted. They were held to be tenants in common in equity

 
John, Duke of Roxburgh v Christian Kerr of Chatto, and Charles Kerr, Esq Her Husband, and Captain William Elliot of Wells [1735] UKHL 1_Paton_156; (1735) 1 Paton 156
18 Mar 1735
HL

Scotland, Land
Tailzie - An estate was held under a strict entail against contracting debt, or doing any deed whereby it might be evicted, but with power to the heirs to burden it with the entailer's debts. In security of some of these debts, proper wadsets were granted over a part of it, and the heir afterwards executed a bond of eik in favour of the creditor upon his becoming bound to relieve him of certain other of the debts. It was found that the bond was not ultra vires of the heir, and that a decree of apprising proceeding upon it, by which the lands had been carried off, was not struck at by the entail.
[ Bailii ]
 
Sir William Gordon, Bart Alexander Gordon of Ardoch, Esq and Others, Tenants of Ardoch v Jane Mackenzie, Widow of John Urquhart of Newhall, Esq [1736] UKHL 1_Paton_176; (1736) 1 Paton 176
6 Feb 1736
HL

Land
Personal and real - Discharge - A widow being infeft for her jointure in certain lands, agreed with the son to accept a restricted sum out of other lands, which being afterwards sequestrated by his creditors, she brought an action against the purchaser and tenants of the first estate for her jointure and bygones;-the claim was sustained.
The purchaser having acquired right to a wadset of the lands, in consideration of which he had reserved a part of the price,-found that the wadset, though prior in date, did not stand in the way of the claim.
[ Bailii ]
 
Henry Trotter, of Morton Hall, Esq v Alexander, Earl of Marchmont; William, Earl of Home; Andrew Hogg of Harcarse, Esq; William Home and Roger Moodie; [1736] UKHL 1_Paton_186; (1736) 1 Paton 186
12 Feb 1736
HL

Scotland, Land
Commonty. - Prescription - The proprietor of a moor (over which several heritors had rights of servitude,) possessed other lands, to which no servitude on the moor belonged, but the tenants of which were in use for above forty years, of pasturing cattle, &c. in common with the occupiers of the dominant lands. Found in a process of division of the moor, that the proprietor of the moor, (besides one fourth tanquam pr cipuum,) was entitled to a share in respect of these other lands.
[ Bailii ]
 
Bell v Gartshore 2 Ross's LC 410; (1737) M 2848;
1737
IHCS

Scotland, Land
The court adopted the principle that unrecorded personal deeds, such as a disposition, could not affect feudal rights.
1 Citers


 
Bell of Blackwoodhouse v Gartshore 1737 M 2848; 5 Br Suppl 198; 2 Ross's LC 410
1737


Scotland, Land
Alexander Oliphant bought a tenement in Kelso which was being sold by the adjudging creditors of William Chatto. Without becoming infeft, in 1730 Oliphant disponed the decree of sale to Chatto's son, who also was not infeft. Two years later Chatto junior granted a heritable bond to Bell of Blackethouse who had paid two bills of exchange for him and was entitled to relief. Bell entered into possession but was not infeft. In 1734 John Gartshore, another creditor of Chatto junior, adjudged the decree of sale of the tenement from him and obtained a charter of resignation from the superior, the Duke of Roxburgh, on which he was infeft. A question arose as to the respective entitlements of Chatto junior's two creditors, Bell and Gartshore. Held: No conveyance of a personal right to lands can so divest the disponer as to prevent him from granting a posterior deed that may, by prior sasine, be made the preferable.
1 Citers


 
Millechamp v Jordan (1740) Willes 202
1740


Land
A claim was made that land was subject to a customary right for recreation. Held: The right would be limited to "legal and reasonable times of year" so as not to allow the user to deprive the landowner of all profits of the land.
1 Citers


 
Bell v Wardell (1740) Willes 202; [1740] 125 ER 1131
1740

Willes CJ
Land
The defendant argued in defence to a claim of trespass to land that there was a customary right for the inhabitants of the town to walk and to ride over a close of arable at all seasonable times. Held: The claim was bad, because the defendant had trespassed at a time when the corn was standing. "It was said that by 'seasonable times' was meant in good weather, when it did not rain, snow or hail, and when it would be seasonable to ride out for the preservation of health, as the custom is laid to be, But the word 'seasonable' will admit here of no such construction; for it is ridiculous to say that 'unseasonable' was meant in respect to the person claiming the right. But 'unseasonable' must necessarily mean in respect to the owner of the soil; otherwise the custom would be a very strange one, that all the inhabitants of the town of N might ride over plaintiff's corn and grass at all times of the year which would be to say that the inhabitants of N had a right to take away from plaintiff all the profits of his own land." The claim might be granted provided the right was compatible with a reasonable use of the land by the owner.
1 Citers


 
George, Viscount Garnock, Et Alii v Earl of Glasgow, Et Alii [1740] UKHL 1_Paton_281; (1740) 1 Paton 281
18 Apr 1740
HL

Land
The act of 1685, respecting the registration of entails, applies as well to entails made prior, as to those made subsequent to its date.
The fetters of an unregistered entail not having been inserted in the rights and infeftments of an heir, although referred to generally, are ineffectual against the creditors of the heir.
[ Bailii ]

 
 Berrysford v Millward; 18-Jul-1740 - [1740] EngR 162; (1740) Barn C 101; (1740) 27 ER 571

 
 Partriche v Powlet; 17-Oct-1740 - [1740] EngR 185; (1740) 2 Atk 54; (1740) 26 ER 430
 
Chetwynd v Fleetwood and Others [1742] EngR 59; (1742) 1 Bro PC 300; (1742) 1 ER 580
17 May 1742
PC

Land, Wills and Probate
In what case an heir is bound toperform his father's covenant though he is neither his personalrepresentative, or claims any part ofhis realestate, except what is settled upon him in strict settlement, and in whichhis fater had only an estate for life.
[ Commonlii ]
 
William, Earl of Sutherland v Ross, Anderson, Et Alii [1743] UKHL 1_Paton_351; (1743) 1 Paton 351
25 Mar 1743
HL

Land, Torts - Other
A vassal having incurred recognition by alienating part of his lands, and the superior, upon his subsequent forfeiture, having, in his exceptions taken before the Court of Session against the survey made by the trustees, founded his claim solely upon 1st Geo. I. c. 20, and obtained decree, it was found not competent for him thereafter to insist in a declarator of recognition on the ground of the alienation.
[ Bailii ]
 
Collins v Hodsden [1744] EngR 428; (1744) 2 Barn KB 305; (1744) 94 ER 517 (A)
1744


Land
How far in an ejectment the Court will not direct that deeds should be produced at trial
[ Commonlii ]
 
Watson, Trustee For Heir of Hamilton of Redhouse, and The Other Creditors v Glass, and Other Children of The Deceased etc [1744] UKHL 6_Paton_681
5 Dec 1744
HL

Trusts, Land
Tailzie - Clause, Provision to Daughters - Obligation - "Heirs Female." - An entail bound the heirs of entail "to pay his daughters and heirs female," 10,000 merks, The entailer had only one daughter, and his son, who had succeeded under the entail, having fallen into debt, his trustee objected to pay this provision, on the ground that it was conceived only in favour of such daughter as should succeed as "heir female" Held her entitled to the provision, and affirmed in the House of Lords.
[ Bailii ]
 
Flureau v Thornhill (1776) 2 Wm Bl 1078; 96 ER 635; [1746] EngR 175; (1746-1779) 2 Black W 1078; (1746) 96 ER 635
1746

Blackstone J, De Grey CJ
Land, Contract, Damages
A person who contracts to purchase land, but where the title is, without collusion, defective cannot claim for his loss of bargain. 'These contracts are merely upon condition, frequently expressed, but always implied, that the vendor has good title. If he has not, the return of the deposit with interest and costs, is all that can be expected.' 'Upon a contract for a purchase, if the title proves bad, and the vendor is, without fraud, incapable of making a good one, I do not think the pourchaser can be entitled to any damages for the fancied goodness of the bargain, which he supposes he has lost.'
1 Citers

[ Commonlii ]
 
Penn v Lord Baltimore (1750) 1 Ves Sen 447
1750


Land
The court compelled Lord Baltimore to comply with the obligations he had assumed to the Penn family, by setting the Mason-Dixon line, demarcating boundaries between the privately-owned territories of Maryland, Pennsylvania and Delaware, and afterwards came to symbolise the difference between slavery and freedom. The Court did not claim to interfere with the land laws of colonial North America: those were the exclusive province of the local judges. It did have a right in personam against Lord Baltimore.
1 Citers


 
Attorney-General v Meyrick [1750] EngR 213; (1750) 2 Ves Sen 44; (1750) 28 ER 30
6 Nov 1750


Land

[ Commonlii ]
 
Attorney-General v Duplessis [1751] EngR 1; (1751) 2 Ves Sen 286; (1751) 28 ER 185
1751


Land

[ Commonlii ]
 
Attorney-General v Doughty (1752) 2 Ves Sen 453; [1752] 28 ER 290
1752

Lord Hardwicke LC
Nuisance, Land
As to any right of prospect, a building erected so as to spoil a view cannot at common law be a nuisance for that reason. "I know no general rule of common law, which warrants that, or says, that building so as to stop another's prospect is a nuisance. Was that the case, there could be no great towns; and I must grant injunctions to all the new buildings in this town . . ."
1 Citers


 
Mrs Jacobina Clarke v The Earl of Home [1753] UKHL 1_Paton_533
16 Apr 1753
HL

Land
Prescription of Adjudication.-
Held that adjudication with charter and infeftment were not sufficient to save from the negative and positive prescription, no possession having followed of the lands adjudged, these having never been out of the proprietor's possession; and possession of a part not being sufficient to interrupt prescription as to the whole, but only the part so possessed.
[ Bailii ]
 
John Stirling of Herbertshire, In The County of Stirling, Esq v Archibald Campbell, Younger of Succoth, Esq [1754] UKHL 1_Paton_583
2 Apr 1754
HL

Land
Wadset.-
Proper and improper Wadset, difference between them in law, and also as a title for voting.
[ Bailii ]
 
Lord Cathcartand Others v John Stewart N Shaw of Greenock, By His Guardian [1756] UKHL 1_Paton_618
19 Mar 1756
HL

Land
Entail- Powers of Feuing and Leasing- Interest of Debt.-
1. Question, whether an heir of entail in possession is bound to keep down the interest of the debt on the estate during his possession. 2. Where power was reserved in the entail to grant feus and long tacks. Held that the powers exercised in virtue of this reservation did not fall within the fair and rational administration of the estate, and therefore feus of the greater part of the estate, together with leases of the mansion house and grounds, and sale of growing wood, reduced.
[ Bailii ]
 
Mrs Mary Monypenny, Widow of John Ayton Younger, and Mary and Jean Their Daughters; and James Ayton (Formerly Monypenny) v Thomas Ayton, Second Son To John Ayton The Elder, and Brother To John Ayton The Younger [1757] UKHL 1_Paton_649
11 Mar 1757
HL

Land
Prescription of Entail - Minority -
An entail was executed of an estate, but allowed to lie dormant for eighty years, during which the succeeding heirs had possessed on a different title in fee-simple. Held that the limitations in the entail were worked off and prescribed by the forty years' possession had on this absolute title, and that the minority of heirs substitutes of entail did not interrupt the prescription.
[ Bailii ]
 
The Right Honourable Lord Gray and Lady Gray v Magistrates and Town Council of Perth [1757] UKHL 1_Paton_645
30 Mar 1757
HL

Scotland, Land
Salmon - Fishing - Grant - Drawing Nets On Bank. -
A prior grant to a party of the salmon-fishing in and round an island on a river, without any limitation as to drawing the nets, does not prevent the Crown from making a posterior grant to another party whose lands are opposite to the island; and where the channel is so narrow as not to permit both
[ Bailii ]
 
Robert Anderson, Mason v James Anderson, Late of Crookhill [1759] UKHL 2_Paton_22
26 Feb 1759
HL

Land, Contract
Sale - Security for Price -
Circumstances in which held, where a purchaser did not find satisfactory security for payment of the price within the time specified in the minute of sale, though cautioners were offered, but rejected as insufficient, the seller was entitled to sell the property to another.
[ Bailii ]
 
The Right Honourable John Earl of Rothes, The Right Honourable William Lord Viscount Barrington, of The Kingdom of Ireland, and Others v John Philip, Esq, Auditor of The Revenue In Scotland [1761] UKHL 2_Paton_52; (1761) 2 Paton 52
16 Jan 1761
HL

Land
Entail - Recording.-
Held that the Act 1685, authorizing the recording of entails, applied to entails executed before that Act was passed, and that such entails were not good against creditors unless recorded.
[ Bailii ]
 
Gibb v Livingston (1763) 4 Br Supp 897
1763


Scotland, Land

1 Citers


 
John Spottiswoode of Spottiswoode v James Burnett, Esq of Craigend (1763) 6 Paton 747; [1763] UKHL 6_Paton_747
22 Mar 1763
HL

Land
Superior and Vassal - Non-Entry - Penalties. -
In a declarator of the right of superiority combined with an action of non-entry. Held (1), That the right of superiority was in the Crown and not in the appellant. Reversed in the House of Lords. (2) In the House of Lords the vassal was held not to be liable for the penalties of non-entry, that is, the full maills and duties of the lands, except from the date of citation in this declaratory action.
[ Bailii ]
 
Archibald and James Canison v David Marshall [1764] UKHL 6_Paton_759; (1764) 6 Paton 759
27 Jan 1764
HL

Land
Reduction - Force and Fear. - A reduction was raised of certain deeds impetrated from the respondent's mother, under the threat that the deed granted in her favour by her father was forged, and that he could procure them to be hanged for it, whereby she, with consent of her husband, was induced to grant a disposition of the estate left her by her father, and also to execute a renunciation of her right: Held these deeds invalid and ineffectual, and reduced accordingly.
[ Bailii ]

 
 William Belchier And Others v John Renforth; PC 9-Feb-1764 - [1764] EngR 26; (1764) 5 Bro PC 292; (1764) 2 ER 686
 
Douglas v Adjudging Creditors of Kelhead and sub nom Douglas v Stewarts (1765) 3 Ross's LC 169; M 15616
1765


Scotland, Land
In 1705 Sir William Douglas bound himself on marriage to provide the estate of Kelhead in favour of himself and the heirs-male of his body. He did not carry out that obligation, but in 1724 he executed a strict entail of the lands, which was recorded in the register of tailzies, but no infeftment followed upon it. He died in 1733 and, eventually, in 1751 his son, Sir John Douglas, succeeded in having the entail reduced on the ground that Sir William had had no power to entail the estate of Kelhead since it had been provided to the heirs of the marriage. Sir John was then infeft in fee simple in the estate and proceeded to borrow large sums. In due course, during Sir John's lifetime, a process of ranking and sale of the estate was brought at the instance of his creditors, some being heritable creditors infeft and others being personal creditors who had adjudged and one of whom was infeft. Sir John's eldest son, Captain Douglas, objected to the sale on the ground that, by serving heir to Sir William, his father had barred himself from reducing the entail. The creditors argued that, even supposing that the reduction of the entail could be taken out of the way, this could not affect their debts since the feudal right of the estate was vested in Sir John as a fee-simple without any fetters or limitations whatever and so it was liable for the payment of all his personal debts. Held: the entail would never be more than a personal right which would not affect the creditors, since it had not been feudalised by infeftment and recording in the register of sasines. The principle in Bell -v- Gartshore applied even in cases where the creditors had not relied on the register when contracting with the debtor.
1 Cites

1 Citers


 
Lord Kinnaird v Hunter and Others [1765] UKHL 2_Paton_97; (1765) 2 Paton 97
18 Feb 1765
HL

Land
Recording Entails.-
An entail contained no express prohibitions against granting leases, and the heir granted leases of 11, 19, and 38 years' duration: Held, in a reduction of the leases, that they were good against singular successors, the entail not having been recorded, although executed before the date of the act 1685
[ Bailii ]
 
John Young of Newhall, Esq v Margaret, The Widow of John Scot Nisbet of Craigentinny, Esq, Deceased; Chambre Lewis, Esq, and Thomas Tod, Disponees of The Said John Scott Nisbet [1765] UKHL 2_Paton_98; (1765) 2 Paton 98
21 Feb 1765
HL

Land
Entails - General Clause - Prohibitions against Sales.-
An entail contained a general clause, prohibiting the heirs from doing any fact or deed in prejudice of the succeeding heirs of entail, but no special prohibition against sales: Held the general clause not sufficient to protect against sales.
[ Bailii ]
 
Robert Pringle of Clifton v Duke of Roxburgh, and Mr M'Dougall, His Grace's Lessee of Caverton Mill [1767] UKHL 2_Paton_134; (1767) 2 Paton 134
2 Feb 1767
HL

Land
Servitude of Aquaeductus - Part and Pertinent - Possession.- Circumstances in which found, that a party had a right to the run of water, or a servitude of aqueduct, through a neighbour's lands, without any express grant, but as part and pertinent of a mill; and was entitled to access to do all acts to keep it in repair; and had good right to question the acts of the proprietor, through whose lands it flowed, in so far as these tended to injure or diminish the flow of water to his mill.
[ Bailii ]
 
The Earl of Roseberry v The Creditors of Hugh Lord Viscount Primrose, Deceased [1767] UKHL 3_Paton_651; (1767) 3 Paton 651
3 Apr 1767
HL

Scotland, Land
Entail - Registration - Act 1685 - Passive Representation. - (1.) An entail Mas made, and charter and infeftment passed thereon some years before the Act 1685, regarding the recording of entails, Held, that in order to protect against creditors, such an entail must be recorded. (2.) An heir succeeding, not by an universal title, but as heir under a particular destination, and not haeres alioquin successurus, found only liable to the extent of the value to which he succeeded.
[ Bailii ]
 
David Ogilvie, Esq v Skene and Hunter [1768] UKHL 2_Paton_141; (1768) 2 Paton 141
4 Mar 1768
HL

Land
Infeftment - Dispensation Clause.-
Held, reversing the judgment of the Court of Session, that where parts of lands are conveyed by a party, whose charter contains a dispensation clause authorizing infeftment to be taken on a part for the whole, that the benefit of this dispensation clause is not lost to the parts alienated, when the conveyance is merely for life, to revert then to the granter, and that the infeftment taken on part was good for the whole.
[ Bailii ]
 
Richard Roe, On The Several Demises of Elizabeth Haldane And Thomas Urry, v William Harvey [1769] EngR 17; (1769) 4 Burr 2484; (1769) 98 ER 302
1769

Lord Mansfield CJ, and Aston and Willes JJ
Land
The production of a deed establishing an estate in the land is necessary to support an action of ejectment of a defendant from land.
1 Citers

[ Commonlii ]
 
Alexander Brodie, Esq of Lethen v Sir Ludovick Grant of Grant, Bart; Sir Alexander Grant of Dalvey; Sir William Dunbar, Bart, and Others [1769] UKHL 6_Paton_775
25 Apr 1769
HL

Land
The boundary which divided the appellant's salt water fishings from the respondents' fresh water fishings on the River Findhorn, ascertained and fixed.
[ Bailii ]
 
Sir Ludovick Grant, &C v Alexander Brodie, Esq [1769] UKHL 6_Paton_779
25 Apr 1769
HL

Land
This was a dispute about the right to the mussel-scalps in the river Findhorn.
A grant from the Crown to Ross of Kilravock, of the mussel-scalps in the River Findhorn, which is a public river, supported by long possession, was preferred before a similar grant of later date, in favour of the appellants.
[ Bailii ]

 
 Longhead v Phelps; 1770 - (1770) 2 Wm Bl 704
 
The Earl of Roseberry v Wm Foulis, Esq and Others, The Heirs-Substitutes and Creditors of The Entailed Estate of Primrose [1770] UKHL 3_Paton_654; (1770) 3 Paton 654
4 Feb 1770
HL

Land
Entail - Prohibition against Contracting Debts. -
An entail was executed of an estate, with prohibitory, irritant, and resolutive clauses, directed against the contraction of debt, or burdening the estate, or selling or alienating the same. A subsequent heir of entail having contracted debt, a succeeding heir of entail applied to the Court, for liberty to sell part of the estate for payment thereof: Held, that by the conception of the entail, the pursuer could not sell for the payment of debts. Affirmed in the House of Lords, on the special ground, that the debts were contracted since the death of the entailer, contrary to his intention.
[ Bailii ]
 
James Simson v Alexander M'Millan, and William M'Donald, Writer, His Attorney, Responents [1770] UKHL 2_Paton_227
16 Mar 1770
HL

Scotland, Land
Sale - Absolute Right or Right in Security.-
Circumstances in which a sale of houses by auction was held to be unwarrantable, rigorous, and unfair, from the conduct of the seller, the conduct of the judge, and from the price at which it was sold. Also circumstances in which certain letters proved that an absolute disposition was a right merely in security.
[ Bailii ]
 
Patten, Representatives of Richardson v Carruthers, Clerk, Dunbar, Dunbar [1770] UKHL 2_Paton_238
24 Mar 1770
HL

Land
Power to Grant Leases of Mines - Implied Recall of Factory.-
Two persons acted in this country as trustees for a person abroad, owner of an entailed estate in Scotland. Their previous letters advised them to enter into agreements in regard to the lead mines on the estate, and that any such, entered into by them, would be affirmed and ratified by him. They entered into an agreement with the appellants for a lease of the mines of the estate, binding themselves, so soon as powers to that effect arrived from Antigua, to grant them a regular lease. On this agreement possession followed. These powers arrived; but, before the regular lease was granted, the owner's affairs became embarrassed, and he sent home to Scotland his son with powers to raise money on his estate, either by lease, assignation, or conveyance of the same, and conferring on him power to grant deeds to that effect. The son granted letter agreeing to give a lease of the same mines to other parties; Held, reversing the judgment of the Court of Session, that the second factory was not meant as an implied revocation of the first, but was to be viewed only as a power to raise money on the estate, and that the trustees' obligations remained good to grant a lease to the appellants in terms of the first agreement with them.
[ Bailii ]
 
Roe, On The Several Demises of Thomas Urry, And Elizabeth Haldane v Harvey [1770] EngR 57; (1770) 5 Burr 2638; (1770) 98 ER 387 (A)
26 Jun 1770


Land

1 Cites

[ Commonlii ]
 
Archibald Edmonstone of Duntreath v Campbell Edmonstone, Esq and Others [1771] UKHL 2_Paton_255; (1771) 2 Paton 255
15 Apr 1771
HL

Scotland, Land
Entail - Institute - Fetters.- Held, that where the prohibitory, irritant, and resolutive clauses in a strict entail, are directed against the heirs of entail merely, these terms do not include the institute, as he is not an heir of entail, but a special disponee; reversing the judgment of the Court of Session.
[ Bailii ]
 
John Deas and Others, Feuars In Prince'S Street, Within The Extended Royalty of The City of Edinburgh, and Proprietors of Houses There v The Lord Provost, Magistrates, and Council of Edinburgh [1772] UKHL 2_Paton_259; (1772) 2 Paton 259
10 Apr 1772
HL

Scotland, Land
This was a bill of suspension and interdict applied for by the proprietors and feuars of the houses in Prince's Street, against the Magistrates and Town Council of Edinburgh, to interdict and prohibit the building and erecting houses opposite their feus, in Prince's Street gardens, then called the North Loch, in violation of the Plan and sales of these feus, and of the original proposals and resolutions of the Magistrates, held out, and agreed to, by them, in granting their feu rights. These resolutions were embodied in the acts of Parliament obtained for extending the royalty, which stated and described the objects to be, "to enlarge and beautify the town, by opening new streets to the north and south, removing the markets and shambles, and turning the North Loch into a canal, with walks and terraces on each side." And the plan drawn out and adopted by the Magistrates and shewn to the feuars showed these grounds (Prince's Street gardens) so laid out for pleasure grounds and walks.
[ Bailii ]
 
John Hepburn of Edinburgh, Surgeon, and William Cheap v George Aikman of Glasgow, Merchant [1773] UKHL 2_Paton_326
30 Apr 1773
HL

Scotland, Land
Sale - Exceptionable Title.- Circumstances in which held, that a purchaser, according to the terms of the sale, was bound to take the title as it stood, or give up the bargain.
[ Bailii ]
 
St John v Bishop of Winton [1774] EngR 31; (1774) 1 Cowp 94; (1774) 98 ER 985
1774


Wills and Probate, Land
One possessed of three species of estates in the county of H. viz. one by articles wholly executory, another executory in part and a third (being an advowson) completely executed by a recent conveyance, devises to his wife as follows: "All the manors, messuages, advowsons and hereditaments in the county of H, for the purchase whereof I have already contracted and agreed, or in lieu thereof, the money arising by the sale of my real estate in the county of L. ;" (with directions for completing the contracts). The advowson, the purchase of which was completely executed before the making of the will, shall pass.
[ Commonlii ]
 
John Ross of Auchnacloich v Murdoch Mackenzie of Ardross [1776] UKHL 3_Paton_676
29 Apr 1776
HL

Land
Exclusive Title - Prescription - Minority - Res Jodicata. - A deed was executed in favour of an infant, narrating that the granter was on the eve of going abroad, and conveying his estate. Thereafter debts were contracted by him, and a party having obtained right to certain adjudications over his estate, and obtained charter and infeftment thereon, and having thereafter obtained possession of the estate, and held it for more than forty years, held that the granter of the deed was not divested of the estate, and that the adjudging creditor had acquired an exclusive title by the positive prescription, and the minorities pleaded not sufficient to elide it. Also, that the decree formerly pronounced in the same matter was res judicata.
[ Bailii ]
 
Jean Allan, and Donald Smith, Her Husband v Arthur Sinclair, Esq, and Isaac Grant, W S, His Attorney [1776] UKHL 2_Paton_403
13 Nov 1776
HL

Land
Deed - Implied Revocation - Error in Procedure.- A party executed a deed, conveying his whole heritable and moveable estate to his four sisters and their heirs-male, according to certain proportions, in 1764, reserving power to revoke, but declaring it to be good in so far as not revoked. He afterwards married, and in 1766 executed a new deed, conveying his whole heritable and moveable estate to the heirs of his own body, of that marriage. There was no revocation of the first deed. He thereafter died, leaving a son, who only survived his father three months: Held, on failure of his issue, that the first deed remained good; and as there was no implied revocation of it by what was done, and no express revocation, the same was to be read as if it had within it the deed of 1776, and so excluded the heirs-at-law as such.
[ Bailii ]
 
Keech v Hall (1778) 1 Doug KB 21; [1775-1802] All ER Rep 116; [11778] 99 ER 17
1778

Mansfield CJ
Land, Limitation, Landlord and Tenant
The tenant resisted ejectment by the landlord's mortgagee. His tenancy had been created after the mortgage. Held: The mortgagee seeking ejectment did not first need to give a tenant a notice to quit. Mansfield CJ said: "Whoever wants to be secure when he takes a lease should inquire after and examine the title deeds." For time to run against a mortgagee and bar his right to recovery of the mortgaged land, the mortgagor must be in adverse possession of the land being in possession without any right and without the consent, express or implied, of his mortgagee.
1 Citers


 
Bedwell v Froome Unreported, 10 May 1778
10 May 1778

Sir T Sewell
Land


 
Andrew Wauchope, Esq of Niddry v Earl of Abercorn, and Sir John Hope [1780] UKHL 2_Paton_519; (1780) 2 Paton 519
21 Feb 1780
HL

Scotland, Land
Lease of Coal - Right of Property - Servitude - Opus Manufactum - Recompense.-
Circumstances where the level of a pit was communicated by the lessee to a neighbouring colliery, with proviso of the proprietor, that the level should not be communicated into any other neighbouring collieries, for the purpose of working the coal, to the prejudice of his original property; Held, on communication of the level to the neighbouring collieries, that the appellant was entitled to have it shut up; also held, in consequence of such communication, that the recompense due to him must be adequate to the benefit which has been enjoyed by the use of such level. There was a thick wall left in working the Niddry coal, which divided it from the coal of Woolmet, which stood higher up. The wall, consisting of porous coal, did not prevent the water from flowing down from the Woolmet pit to the Niddry coal. The proprietor of the latter was proceeding to make downsets to prevent this, when Sir Archibald Hope brought a suspension, contending that the Niddry coal, being the inferior
[ Bailii ]
 
The York Buildings Company, and Their Creditors v James Ferguson of Pitfour, Esq [1780] UKHL 2_Paton_541; (1780) 2 Paton 541
21 Mar 1780
HL

Land
Sale of Lands - Wadset - Decree of Sale.-
The York Buildings Company purchased the forfeited estate of the late Earl Marischall, together with the right of redemption of the wadsets and superiorities thereof. There were two wadsets on the lands of Clerkhill and Downieshill, being part of the Marischall estate. The Marischall estate, along with others, was afterwards let on lease to Sir Archibald Grant and Mr. Garden; and were thereafter ordered to be sold by Act of Parliament, as so let on lease. Neither the articles as to the lease, nor the Act of Parliament, mentioned any thing about the wadset lands of Clerkhill and Downieshill, although the prepared state and scheme of the rental included them in the computation of the rental and price at which they were to be exposed. The purchaser insisted that they were included, and ought to go into his charter, as the decree of sale conveyed to him "all and hail the late Earl Murischall's lands in the county of Aberdeen, except certain parts therein mentioned." Held, that the right of reversion was not included in the sale, and still belonged to the York Buldings Company.
[ Bailii ]
 
Mitchells v Ferguson 3 Ross's LC 120; 1781 M 10296; Hailes 879
1781

Lord Braxfield, Lord Gardenston
Scotland, Land
In 1768 William Donald sold his house to Agnes Carson but, pending payment, the disposition was held by Donald's man of business. As found by the Lord Ordinary (Monboddo), the price was paid by a certain William Ferguson, on the basis that Carson would grant him a heritable bond or a disposition in security. When she failed to do so, Ferguson raised proceedings for implement of this obligation and obtained a decree in absence on 4 July 1777. The following month, on 9 August 1777, the Mitchells, as creditors of Donald, obtained a decree of adjudication of the house against him and were infeft. Carson, however, raised a multiplepoinding and suspension of the decree in absence. The nature of feudal rights was such that they could not be affected, qualified or burdened by any personal deed and that a conveyance, so long as it continued personal, did not divest the disponee. "I know no safety to the feudal law, unless you prefer infeftments; for otherwise an imperfect right would be better than a complete one. There is great danger in departing from this feudal principle, but none in adhering to it. The disponee is safe, unless he is supinely negligent; for an adjudication cannot be taken on a sudden, and without the knowledge of many." Bell -v- Gartshore reasoning would apply even where the creditors didd not rely on the register when contracting with the debtor.
1 Cites

1 Citers


 
Taylor v Whitehead [1781] EngR 77; (1781) 2 Doug 745; (1781) 99 ER 475
28 Jun 1781

Lord Mansfield
Land, Torts - Other
A motion may be made in arrest of judgment after a rule for a new trial has been discharged, and at any time before judgment is entered up. It is not a good justification in trespass, that the defendant has a right of way over part of the plaintiffs land, and that he had gone upon the adjoining land, because the way was impassable from being overflowed by a river.
The dominant owner of an easement of way (in whose interest it is that the way be kept in good repair) is entitled to maintain and repair the way and, if he wants the way to be kept in repair, must himself bear the cost.
1 Citers

[ Commonlii ]
 
William Waddell of Papperthills v John Russell of Bentfoot [1781] UKHL 2_Paton_579; (1781) 2 Paton 579
10 Dec 1781
HL

Land
Servitude of Mineral Well - Possessory Judgment.- A party claimed a servitude over a mineral well in his neighbour's field, near the mutual fence dividing their properties, and alleged the use and possession thereof for time immemorial. The Sheriff sustained his claim as a servitude. On advocation the interlocutor was varied, so as to leave out any finding as to a servitude. Held in the Court of Session and House of Lords, that he was entitled to the possessory judgment, as to his use of the well, and to have access thereto by a stile over the stone wall.
[ Bailii ]
 
Janet Allan, Relict of John Cameron, Late of Carntyne, and Her Children v Messrs Robertson and Others, Creditors of Richard Cameron, Now of Carntyne [1781] UKHL 2_Paton_572; (1781) 2 Paton 572
15 Dec 1781
HL

Scotland, Land
Real or Personal - Provisions to Wife and Children.- Circumstances in which held, that these had not been made real burdens on the estate conveyed.
[ Bailii ]
 
Russel v Russel [1783] EngR 76; (1783) 1 Bro CC 269; (1783) 28 ER 1121 (B)
16 May 1783


Land, Equity

1 Citers

[ Commonlii ]
 
Dalrymple,and others v Hunter and Others [1784] UKHL 6_Paton_807
17 Jun 1784
HL

Land
Entail - Fetters. -
An entail prohibited the sale of the estate, and laid the fetters on the "substitutes before mentioned and described by name" Held that this was sufficient to include within the fetters the descendants of the body of those substitutes.
[ Bailii ]
 
Mrs Ann Paterson and Philip Anstruther, Mary Paterson, and Alexander Campbell and Henry Campbell v Stephen Bromfield, Esq [1786] UKHL 3 - Paton - 50
19 Feb 1786
HL

Land
Entail. - A party had made an entail with power to alter. He afterwards altered, and made a new entail, differing in the destination from the first, with a clause merely referring to the prohibitory, irritant, and resolutive clauses in the first deed. Held, this reference clause not sufficient as an entail to protect against creditors.
[ Bailii ]
 
Alex Clerk, Aberdeen v Hugh Gordon [1787] UKHL 3 - Paton - 61
9 Mar 1787
HL

Land
Gestio pro Haerede - Passive Title. - A father had conveyed his whole estate, heritable and moveable, to his third son, who, in recovering, found an heritable debt of andpound;60, which was not specially embraced in the conveyance. To remove objections to his title to receive and discharge the debt, the father's eldest son and heir-at-law, consented to sign the discharge along with his brother. Held, that this subjected him in the passive title of gestio pro haerede. But, in the House of Lords, case remitted back for consideration, and to adduce proof that, at the date of the discharge, his brother was in right to receive the debt of andpound;60.
[ Bailii ]
 
Alex Cuthbert, Esq, and Chas Innes, Ws v Mrs Anstruther Paterson and Philip Anstruther Paterson, Esq, Her Husband [1787] UKHL 3 - Paton - 76
23 Apr 1787
HL

Land
Entail. - Held, that where an entail was declared ineffectual against creditors, in consequence of not enumerating the irritant and resolutive clause, and not being recorded, that it could not be held good against a purchaser of the estate.
[ Bailii ]
 
Honourable W Elphinstone v Campbell and Others [1787] UKHL 3 - Paton - 77
30 Apr 1787
HL

Land
Right of Voting. - Whether a conveyance of a superiority of lands held under strict entail, conferred a substantial right of voting; or was a mere nominal and fictitious creation of a right, resorted to for the purpose of giving a right to vote for a member of Parliament?
[ Bailii ]

 
 Roberts v Massey; 1789 - [1789] EngR 1846; (1789-1817) 2 Ves Jun Supp 353; (1789) 34 ER 1129 (C)
 
Miss Frances Hay, A Minor, and Her Curators v Robert Hay, Esq, of Drumelzier [1789] UKHL 3 - Paton - 142
25 Jun 1789
HL

Land, Trusts
Entail - Succession - Heirs Male. - Circumstances in which the words " heir male" in an entail, received a strict technical interpretation, though they had been used with the same meaning, so far as appeared from the deed, as that of " heirs male of the bodies" of the substitutes, which had been used in other parts of the deed.
[ Bailii ]

 
 Crowe v Ballard; 1790 - (1790) 1 Ves Jun 214
 
Hilton v Bembridge [1792] EngR 1110; (1792) Cro Car 440; (1792) 79 ER 983 (A)
1792


Land
Assent to a stranger, by tenant for life, to a conveyance of the remainder in fee, is a good attornment.
[ Commonlii ]

 
 Farmer v Shereman; 1792 - [1792] EngR 808; (1792) Hob 248; (1792) 80 ER 394 (C)

 
 Symonds v Seabourne; 1792 - [1792] EngR 2431; (1792) Cro Car 325; (1792) 79 ER 884
 
Palmer v Fletcher [1793] EngR 798; (1793) 1 Lev 122; (1793) 83 ER 329 (A)
1793
KBD
Twysden and Wyndham JJ
Land
". . the lights are a necessary and essential part of the house"
1 Citers

[ Commonlii ]

 
 Lady Wingfield v Littleton, Knight; 1794 - [1794] EngR 978; (1794) 2 Dy 162 a; (1794) 73 ER 352 (B)
 
Hawkin's Case [1794] EngR 806; (1794) 5 Mod 389; (1794) 87 ER 723
1794


Land, Ecclesiastical
If tbere be a special custom in a parish, that the adorning of the inside of the chancel of the church shall be done at the charge of the owners arid occupiers of ancient houses, yet they are not bound by such a custom both to ornament and to repair the chancel ; for the parson is bound to repair of common right, and the custom does not release him: nor can the owners and occupiers of mills or racks be rated towards such ornaments ; for where a temporal inheritance is to be charged by a particular custom the custom must be strictly pursued.
[ Commonlii ]
 
Black and Grant v Gordon (1794) 3 Pat 317
1794
HL
Lord Justice Clerk Braxfield
Land
An entail had been recorded in the register of tailzies but infeftment had not followed. The House rejected the appellants' argument that the adjudging creditors could not claim to have relied on the title as it stood in the register of sasines.
1 Cites

1 Citers


 
Fitch v Rawling (1795) 2 Hy Bl 393
1795


Land
A common was claimed at Steeple Bumpstead in Essex for "all kinds of lawful games, sports and pastimes…at all seasonable times of the year." including cricket. Held: Rights of common over land can include the right of local inhabitants to play at all kinds of lawful games, sports and pastimes at all seasonable times of the year.
1 Citers


 
Keen, On The Demise of The Earl of Portsmouth Et Al', v The Earl of Effingham [1795] EngR 2267; (1795) 2 Str 1267; (1795) 93 ER 1173 (A)
1795


Land
Where a bad deed to make a tenant appears, the Court will not presume a good one though to support an old recovery.
[ Commonlii ]
 
Dovaston v Payne [1795] EngR 4015; (1795) 2 H Bl 527; (1795) 126 ER 684
10 Jan 1795
CCP

Land, Torts - Other, Animals
A plea in bar of an avowry for taking cattle damage-feasant, that the cattle escaped from a public highway into the locus in quo, through the defect of fence, must show that they were passing on the highway when they escaped; it is not sufficient to state that being in the highway they escaped.
1 Citers

[ Commonlii ]
 
Smith v Taylor Bells Commntaries 18 December 1795
18 Dec 1795


Land, Scotland

1 Citers


 
Buchan v Farqhuarson 1797 M 2905
1797


Scotland, Land

1 Cites

1 Citers


 
Howton v Frearson (1798) 8 Term Rep 50; [1798] 101 ER 1261
1798


Land
Where trustees sell land, and retain other land, and the sold land has no means of access save over the retained land, a right of way over the retained land in favour of the land sold is implied by operation of law.

 
Fitch v Fitch (1798) 2 Esp 543; [1795] EngR 4032; (1795) 2 H Bl 393; (1795) 126 ER 614
1798

Heath J
Land
The defendants had trampled the grass on a common which the owner had mowed, thrown the hay about and mixed some of it with gravel. Held: The court considered the rights arising from land being declared to be a common: "The inhabitants have a right to take their amusement in a lawful way. It is supposed, because they have such a right, the plaintiff should not allow the grass to grow: there is no foundation in law for such a position. The rights of both parties are distinct, and may exist together. If the inhabitants come in an unlawful way, or not fairly, to exercise the right they claim of amusing themselves, or to use it in an improper way, they are not justified under the custom pleaded, which is a right to come into the close to use it in the exercise of any lawful games or pastimes, and are thereby trespassers."
1 Cites

1 Citers

[ Commonlii ]
 
Lord Gwydir And Others v Foakes [1798] EngR 125; (1798) 7 TR 641; (1798) 101 ER 1175
15 May 1798


Land
By a grant of all tithes arising out of or in respect of farms, lands, &e. the tithes arising out of and in respect of rights of common appurtenant to such farms or lands, will pass.
[ Commonlii ]
 
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